Jardine v Windsor Craig Solicitors

[2004] HCATrans 450

[2004] HCATrans 450

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B89 of 2003

B e t w e e n -

TONY ALLEN JARDINE

Applicant

and

WINDSOR CRAIG SOLICITORS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 NOVEMBER 2004, AT 2.15 PM

Copyright in the High Court of Australia

MR. J.G. CROWLEY, QC:   If it please the Court, I appear with my learned friend, MR S.R.D. BLAXLAND, for the applicant.  (instructed by Swanston & Associates)

MR A.C. BARLOW:   If it please the Court, I appear for the respondent.  (instructed by Hyland Lawyers)

HAYNE J:   Yes, Mr Crowley.

MR CROWLEY:   If the Court pleases.  The facts of the matter I have set out in the summary of argument at pages 30 to 32 of the application book, and we are not proposing to repeat those to any extent.  Yesterday we provided an applicant’s chronology to the Court ‑ ‑ ‑

HAYNE J:   Yes, we have that, thank you.

MR CROWLEY:   That may assist as an aide memoir to some of the matters which are to be put forward.  If the Court pleases, the date for the completion of the transaction being the conveyancing by Donovan as vendor to the applicant here as purchaser, was 20 January 1997, and that was part of exhibit 1 at the hearing. 

Clause 26 of the contract between those parties was deemed time to be of the essence, and by Item L of the schedule, encumbrances were listed as nil.  The provision of the contract required the conveyance of the property to be free of encumbrance.  Paragraph 7 of the plaintiff’s pleading alleges a term of the agreement being that the vendor would provide to the plaintiff a title to the land free of encumbrance.  Paragraph 1 of the defence admitted that paragraph, so that the parties, being the applicant and respondent here, were in agreement upon that matter. 

The contract was drawn up by the respondent’s employee, so that fact and the other fact would have so far been referred to as parts of the contract, were all known to the defendant.  The applicant takes issue with the reasons of the Court of Appeal per Justice Holmes at paragraph [8], the applications book page 17, and it is in these terms.  It says that the:

breach was solely and simply the failure to advise the respondent that he should not hand over his car until searches confirmed the represented position of the land.

It is the applicant’s contention that the breach of retainer is broader than that statement.  It is submitted that it occurred through the failure to conduct the work of arranging the conveyance in accordance with accepted practice.  Particularly, the defendant failed to conduct a search of the title at an appropriate time. 

At the hearing before the learned District Court judge, exhibit 2 was an affidavit by an expert in the field of conveyancing, a Mr Smith.  He recited that the search should have been done on the day the matter was first brought to the solicitors.

HAYNE J:   I understand why you say that the solicitors were negligent.  Let us, and I am not sure that the question of negligence is in controversy, but let us assume that the solicitors were negligent in the performance of their retainer.

MR CROWLEY:   Thank you, your Honour.

HAYNE J:   What loss did your client suffer as a result of that breach of retainer?

MR CROWLEY:   Yes.  Your Honour, our submission is that he suffered the loss which was referred to by the judge in the Court of Appeal, plus, and this is where we differ entirely from that court, the opportunity to present to Donovan, the vendor, the evidence of the encumbered title and require the vendor to make that title good, prior to 20 January 1997, the date on which settlement should have taken place in accordance with the time specified in the contract.

So that what it really, we claim, is that the court has overlooked an important aspect in the law of damages, that the loss of a chance may be a substantial loss in terms of what it will ultimately lead to.  It is our submission that in this case the loss of that chance robbed the applicant of the opportunity, as we have already submitted, of confronting the vendor, having the vendor make good his promise that the title would be one free of encumbrance, and when that was made good, then the applicant here would have received the land free of that encumbrance.

Now, the proposition for which we contend, of course, is qualified to the extent that one must, in regard to a loss of a chance, give to the chance a percentage of the likelihood of its occurring.  The details of Mr Donovan are not inspiring, but the learned judge on appeal, Justice Holmes, said that he decamped.  Our own submissions make a similar assertion, so that perhaps if the Court pleases, the opportunity was a minor one, but it is submitted that it is an important feature of the law of damages that nowadays, in accordance with authorities in this Court, the loss of an opportunity is a significant loss in the circumstances where that opportunity can be regarded as being a highly likely event. 

So that it is really on that basis that the matter comes before this Court, and that is not altogether in accordance with the way the matter is set out in our argument.  If we could then ask the Court to go to page 32 of the applications book, and at that page the Court will see the further argument which the applicant puts in regard to the statement of the applicant’s argument.  We propose simply to adopt that statement without further comment, and unless there is anything further which the Court requires of us, we do not propose to make any further submissions.

HAYNE J:   Yes, thank you, Mr Crowley.  We need not trouble you, Mr Barlow. 

We are of the opinion that there is no reason to doubt the correctness of the conclusions reached by the Court of Appeal.  It follows that special leave to appeal is refused with costs. 

AT 2.24 PM THE MATTER WAS CONCLUDED